Opinion
No. FA 06-4018875S
May 25, 2006
MEMORANDUM OF DECISION ON DEFENDANT'S MOTION TO DISMISS OR, IN THE ALTERNATIVE, TO CONSOLIDATE (#121) AND MOTION TO CONSOLIDATE (#122)
The present action is an application of a minor child, filed on his behalf by his father, for a restraining order against the mother pursuant to § 46b-15 of the General Statutes. The court must decide whether a pending dissolution action between the father and mother requires dismissal of this action and whether the appointment of a guardian ad litem for the minor child in this proceeding divests the father of standing to bring this action on behalf of his minor child. For the reasons more fully described below, the motion to dismiss based on the prior pending action rule is denied, the motion to consolidate is denied, and the clerk is directed to schedule a hearing to determine whether the GAL should be substituted for the father as next friend for the minor and, if not, whether the father is the proper person to maintain this action.
Upon the filing of the § 46b-15 application on March 14, 2006, this court, after determining that an action for dissolution of marriage was already pending between the two parties, directed counsel for both parties to appear prior to the court's ex parte ruling on the application. Counsel appeared that afternoon, as did the attorney appointed in the dissolution action to serve as guardian ad litem for the minor child on whose behalf this § 46b-15 action has been brought. With the agreement of both parties, the court appointed that attorney as GAL in the present proceeding. The court ordered that a hearing be scheduled on the application for the restraining order.
The following day, the court issued an order directing the parties to submit briefs on the question of "whether the appointment of a guardian ad litem for the minor child in the restraining order proceeding affects standing in that proceeding." The defendant subsequently moved to dismiss this action on the grounds that appointment of the GAL divests the father of standing to maintain this action and that similarity of this action to the pending dissolution matter requires this matter to be dismissed pursuant to the prior pending action doctrine. Both sides have submitted briefs and presented oral argument on all pending issues and the matter is ripe for decision.
The defendant's argument that a prior dissolution action counsels for dismissal of this action under the doctrine of prior pending action is appealing. This court's review of the dissolution file shows that custody is already a heavily contested issue in that matter, and a guardian ad litem has been appointed there for the minor child. As our Supreme Court has recently explained, "Under the prior pending action doctrine, the pendency of a prior suit of the same character, between the same parties, brought to obtain the same end or object, is, at common law, good cause for abatement." (Quotation marks omitted; internal alterations omitted; citations omitted.) Larobina v. McDonald, 274 Conn. 394, 409, 876 A.2d 522 (2005).
Although the respondent presents appealing arguments as to how orders entered in a restraining order proceeding can interfere with the ability of the dissolution court to resolve a custodial dispute, this court believes that the prior pending action does not apply. Although the mother and father are both currently parties to the dissolution action, which will determine custody of and access to the minor child, the father is not the plaintiff here. "Neither the prochein ami nor the guardian ad litem are the real parties to the actions which they may prosecute or defend. Such suits are conducted by them in the name of the infants whom they represent, and not in their own names." Williams v. Cleaveland, 76 Conn. 426, 431, 56 A. 850 (1904). To paraphrase the court's holding in Orsi v. Senatore, 31 Conn.App. 400, 423, 626 A.2d 750 (1993), rev'd on other grounds, 230 Conn. 459, 645 A.2d 986 (1994), the restraining order action "is brought on the child's behalf" and "belongs to" the minor child, not to his "prochein ami." "The next friend representing an infant plaintiff is in no sense a party to the action, nor has he any interest in the litigation, but the real party plaintiff in the suit is still the infant."
The falter brings this action not in his own right, but on behalf of the minor child, who, because of age, is incompetent under the law to bring suit on his own. The court can conclude of no reason why a minor child should not be entitled to the procedures and protections of the restraining order statute — speedy ex parte review of an affidavit alleging imminent harm, filing and service of the application and any ex parte orders without cost to the applicant, evidentiary hearing in no more than fourteen days, recording of all orders in the computerized domestic violence registry that is immediately available to law enforcement officials throughout the country, and felony criminal prosecution of those violating restraining orders. The motion to dismiss on the grounds of a prior pending action is thus denied.
The respondent also moves, in the alternative, that the restraining order application be consolidated with the dissolution proceeding "to avoid the risk of inconsistent, contradicting orders" and ensure "a single, coherent ruling after full consideration of all relevant evidence." She maintains that the two actions involve "the same occurrence and issues of law and fact." "Generally, it is appropriate to consolidate where the actions arise out of the same transaction or involve identical parties." W. Horton K. Knox, 1 Connecticut Practice Series: Practice Book Annotated (2004 Ed.) § 9-5, comments. The two actions here do not involve identical parties, however, and the legal and factual issues are distinctly different. In a dissolution action, the custodial orders are governed by the best interest of the minor child. A restraining order proceeding on behalf of a minor child, while necessarily guided by the child's best interest, depends specifically on whether the respondent has subjected the child to a continuing threat of physical harm or physical injury. Though the latter may be a subset of the factors deciding best interest, a restraining order is of limited duration, and extensions for more than six months ordinarily require an additional hearing at the end of the first restraining order period, whereas custodial orders remain in effect until modified by later court order. The motion to consolidate is denied.
The more difficult question is who has the right or authority to bring this action on behalf of the minor child. As the court noted in Orsi v. Senatore, supra, 31 Conn.App. 416, "[t]here is no requirement that the guardian or next friend be a wholly disinterested or neutral person and, in fact, most often the next friend is a parent of the minor child." Yet this court must also be guided by counsel of the Appellate Court that in a custody dispute, "parents lack the necessary professional and emotional judgment to further the best interests of their children. Neither parent could be relied on to communicate to the court the children's interests where those interests differed from his or her own . . . A parent's judgment is or may be clouded with emotion and prejudice due to the estrangement of husband and wife." (Internal quotation marks omitted.) Carrubba v. Moskowitz, 81 Conn.App. 382, 402-03, 840 A.2d 557 (2004), rev'd on other grounds, 274 Conn. 533, 550-53, 877 A.2d 773 (2005). That holding is consistent with the general rule that "[w]hen a guardian has been appointed to protect the interests of a child, the guardian is usually the proper person to bring an action on behalf of the child." Orsi v. Senatore, supra, 230 Conn. 467. Yet the court in Orsi also acknowledged that
There are, however, certain exceptional circumstances when a child may properly sue by next friend, notwithstanding the existence of such guardian, as when the guardian is absent, or is unwilling or unable to institute or prosecute the required action or appeal, and especially when, though declining to take such action himself, he does not forbid such proceeding, or when he is disqualified by interest hostile to that of the infant, or is for other reasons an improper or unsuitable person to prosecute such actions on behalf of the ward. Although generally a person who brings an action as next friend need not obtain prior authorization from the court to do so, the court must determine whether the person seeking to represent the child as next friend is a proper or suitable person to make a claim on behalf of the child.
Id.
In Orsi, a foster parent brought an action challenging the removal of a child from her care and custody by DCYS. The third count of the action was brought in the name of the minor child and challenged the constitutionality of a DCYS regulation denying an administrative hearing when a child is removed foster care and returned to a family member. As summarized in the Appellate Court's opinion, "the thrust of this third claim was that the challenged regulation is unconstitutional on its face because it `denies a child notice and opportunity to be heard' when DCYS determines that a back-to-family placement should be made." Orsi v. Senatore, supra, 31 Conn.App. 408. Orsi claimed "she sought to enforce the child's own state and federal constitutional rights against arbitrary determinations of his best interests." Id. The trial court held that the foster parent lacked standing to maintain such an action because the court had already appointed counsel and a guardian ad litem to protect the child's best interest. "The court therefore saw no need for a next friend, since it perceived that the child's interests were already represented." Id., 422-23.
On appeal, the Appellate Court concluded that the trial court erred in holding that Orsi lacked standing. DCYS had argued that since Orsi had her own interest in challenging the child's removal from her care, she was not "proper person" to assert the child's "separate and distinct" interest. Id., 421. The Appellate Court noted that when the child's counsel/GAL did "not attempt to challenge the DCYS procedures affecting back-to-family placements," "Orsi, the child's foster mother, stepped forward as the child's next friend to raise what was arguably a colorable challenge to the constitutionality of those procedures as they affect the interests of Christopher." Id. The Appellate Court held that when a guardian ad litem "cannot or will not sue for them, as the case may require," then a next best friend may do so. Id., 422. "The trial court apparently overlooked the possibility . . . that a child may, in exceptional situations, be permitted to bring an action by a next friend even when the child already has counsel or a guardian ad litem." Id., 423. "If we were to deprive Orsi of the status of next friend to bring this proceeding, we would be foreclosing judicial review of an agency action arguably involving the child's constitutional rights." Id., 421.
After granting certification to appeal, the Supreme Court agreed with the Appellate Court's conclusion that plaintiff's status as a foster parent did not "necessarily" preclude her from serving as the child's next friend but held that the Appellate Court improperly determined that the plaintiff had "standing as a matter of law to serve as . . . next friend." The court thus remanded the case to the trial court to determine "whether, under the facts and circumstances of this case, the plaintiff had standing" to bring an action as the minor's next friend:
Because both a guardian and a guardian ad litem already had been appointed to represent Christopher's interests in the removal proceedings, the trial court was required to determine whether exceptional circumstances existed to warrant Christopher's representation by a next friend and, if so, whether the plaintiff was a proper person to serve in that capacity.
Orsi v. Senatore, supra, 230 Conn. 466-67. The foster mother was neither precluded as a matter of law from bringing the action as next friend because of the prior appointment of a guardian ad litem, as DCYS argued there and respondent would argue here with regard to the father, nor automatically conferred standing to bring the action merely because the GAL had not done so, as the foster mother argued there and the father claims here.
The Orsi case provides sound guidance here. The brief of the father asserts that "the guardian ad litem has failed and refused to act to protect the minor child." His brief claims that the mother has been arrested for assault of the minor child, but that the GAL has declined to seek a restraining order under § 46b-15 to protect the minor child. The GAL has informed this court, during proceedings on the pending motions, that he is satisfied that the current orders in the pending dissolution action are sufficient, thereby implying that the GAL does not believe a separate restraining order in a § 46b-15 is necessary. The disagreement between the two requires the court to conduct an Orsi hearing. The purpose of that hearing will be to determine whether the guardian ad litem is the proper person to bring a § 46b-15 application on the minor child's behalf at the present time. If so, the court will order the matter dismissed unless the GAL seeks permission to be substituted for the father as next friend. If not, the court will determine whether the father or someone else is the proper or suitable person to bring this action. The clerk of court is ordered to schedule the matter for an immediate hearing on these issues.